Several Federal Judges were interviewed about what foils mediation. These complaints were reduced to 5 themes, and some expected subjects were mentioned, e.g., having someone with full settlement authority at hand and creating higher expectations for the client than justified.

We can work it out.*

Several of their complaints, however, focused on the professionalism of the attorneys. Several judges identified personal disagreements and clashes between opposing counsel as a problem that often derailed mediation. The issue was more likely to arise in a private mediation (compared to court sponsored mediation) according to Magistrate Judge Sally Shushan, U.S. District Court, Eastern District of Louisiana.

Individual attorney vanity was also identified as a settlement inhibitor. Some attorneys are so focused on their own agenda and prior successes that the settlement cannot focus on the case at hand. This braggadocio also causes client over confidence. Reading this reminded me of something I may have said on one or more occasions: “He is a great attorney. If you don’t believe me, just ask him.” Finally, several judges complained about arbitrary money demands. One judge mentioned a case where the plaintiff’s opening demand was three times the statutory cap on all damages. Other attorneys would change their pre-mediation offers without reason. Some attorneys will indicate to the mediator that a fact unknown to the other side, and not to be shared with the other side, changed the value of the case. By not sharing the information, mediation had no chance to succeed. I have witnessed this behavior as well. Typically, it does more harm than good and leaves a poor impression on the mediator. Judge Celeste Bremer of the Southern District of Iowa usually concludes that the attorney making arbitrary demands is unprepared.

Mediation with the best of intentions is not always going to succeed. Engaging in the type of unprofessional conduct discussed in this article prevents the process of mediation from succeeding. This is simply unprofessional. Fortunately, this unprofessional behavior is not typical. Even better, when this behavior occurs, it often dissipates over the course of the day, especially if you have a good mediator.

*Photo from Phineas & Ferb television show from Disney Channel. All copyrights reserved by appropriate parties.